Markus Koehnen

The defendants brought a motion to compel the plaintiff estate to produce unredacted solicitor files of the deceased, William Waters, arguing that the "wills exception" to solicitor-client privilege should extend to determine the deceased's intent regarding inter vivos transfers.

The estate claimed the transfers were impressed with a resulting trust, while the defendants asserted they were gifts.

The court found that the previous order allowed for disputes over privilege and that applying res judicata to informal case management directions would inhibit the process.

The court extended the "wills exception" from Geffen v. Goodman Estate to this case, finding ambiguity in the deceased's will regarding the nature of the transfers.

It ordered the production of all information shedding light on whether the transfers were gifts, including information on the deceased's capacity and susceptibility to undue influence, subject to a protective order to prevent a fishing expedition for claims against the solicitor.

The plaintiff, Infor Financial Inc., sought costs of $511,762.22 following a four-day trial where it obtained a judgment more favorable than its settlement offer.

The defendant, Centrilogic, Inc., argued the amount was excessive and disproportionate.

The court found the plaintiff was entitled to the full amount, applying partial indemnity costs up to the date of the settlement offer and substantial indemnity costs thereafter, in accordance with Rule 49.

The court rejected arguments of disproportionality and excessive time spent, noting the defendant's "hard-nosed approach" and intransigence throughout the litigation.

The defendants, Stantec Consulting Ltd., Gordon A. Johnston, and Paul J.D. Alpern, brought a motion for summary judgment to dismiss the plaintiff G Group's claim.

The motion sought dismissal on the grounds that the claim was barred by the Limitations Act and that no genuine issue existed against the individual defendants.

The court granted summary judgment in favour of the individual defendants, finding no viable claim against them.

However, the court dismissed the motion for summary judgment against Stantec Consulting Ltd., determining that the limitations issue was complex, involved conflicting evidence, and raised genuine issues requiring a trial to resolve, particularly regarding the nature of the agreement and the discoverability of the claim.

The applicant sought a declaration of entitlement to a deposit paid by the respondent under a contract to purchase a new build home, and a direction for a trial on further damages.

The respondent refused to close, alleging misrepresentations regarding square footage and finish quality.

The court found no valid misrepresentations, enforcing the entire agreement clause against the respondent despite claims of limited English and alleged verbal assurances.

The court declared the applicant entitled to retain the $502,500 deposit, finding a 15% deposit not unconscionable.

However, the court dismissed the applicant's request for a trial on further damages, noting it was not sought in the initial application and would lead to inefficient bifurcation of proceedings.

The plaintiff brought an action for oppression against the personal and corporate defendants, alleging unauthorized withdrawal of corporate funds.

The court found the personal defendant liable for oppression, determining that funds were improperly withdrawn and rejecting defences related to a lease and the limitations period.

Damages were awarded to the plaintiff and another shareholder to ensure proportionate return of capital, but punitive damages were denied.

This costs endorsement followed a four-week jury trial where the plaintiffs received a net award of $191,228.65.

The defendant's pre-trial offer of $250,000 to settle all claims was found to attract Rule 49.10 cost consequences, despite being a lump sum and inseverable offer to multiple plaintiffs, due to the application of s. 62(1) of the Family Law Act.

The court adjusted the defendant's claimed costs downward, particularly for internal counsel's estimated time, to ensure indemnity rather than a windfall.

The plaintiffs were awarded partial indemnity costs up to the offer date, and the defendant from that date forward.

A net payment of $21,923.17 in costs was ordered from the defendant to the plaintiffs.

Prejudgment interest on non-pecuniary damages was ordered to run until the end of the trial.

The appellant, MLD, appealed a community treatment order approved by the Consent and Capacity Board.

The appeal raised two main grounds: whether MLD received prompt rights advice as required by the Mental Health Act, and whether the Board erred in finding MLD unable to appreciate the foreseeable consequences of a lack of treatment.

The court dismissed the appeal, finding that the 15-day delay in rights advice was not unreasonable given diligent efforts by the rights advisor and lack of prejudice.

On the capacity issue, the court upheld the Board's majority finding that MLD lacked the ability to appreciate the foreseeable consequences of not adhering to treatment, emphasizing that the Board's weighing of conflicting evidence was not a palpable and overriding error.

This application concerned a dispute between Live Nation and Aviva regarding which of two insurance policies (Aviva's or Live Nation's Starr policy) should primarily cover Live Nation's defence costs in a related claim.

Live Nation, as an additional insured under Aviva's policy (issued to its security contractor NWP), argued Aviva's policy was primary.

Aviva contended its policy was excess and sought equitable contribution from Live Nation's policy.

The court found Aviva's policy to be primary, rejecting the equitable contribution argument based on policy language and commercial intent, and ordered Aviva to pay 100% of defence costs, subject to a future re-apportionment application.

This was a summary judgment motion brought by Andrew Cole and Andrew Cole Corporation, defendants to a counterclaim, seeking to dismiss the counterclaim advanced by Demilec Inc. Demilec alleged that Mr. Cole, as Executive Director of the Canadian Urethane Foam Contractors Association Inc. (CUFCA), acted out of self-interest by developing a competitive product, improperly certifying a competitor's product, and sending misleading emails.

The court found that Demilec failed to provide sufficient evidence to establish a genuine issue requiring a trial.

The allegations against Mr. Cole involved conduct undertaken in his capacity as a CUFCA employee, and no personal liability was established.

The motion was granted, and the counterclaim against Andrew Cole and Andrew Cole Corporation was dismissed.

The Retirement Homes Regulatory Authority (RHRA) brought an application seeking an order for the respondents to cease illegally operating a retirement home and to wind up their business.

The core issue was whether the respondents' facility met the definition of a retirement home under the Retirement Homes Act, specifically concerning the "administration of a drug or other substance." The court found that the respondents did administer drugs based on the ordinary meaning of the term, their own definition, and a purposive interpretation of the Act, which aims to protect vulnerable individuals.

The court also found other care services were provided.

Given the respondents' history of non-compliance and deliberate attempts to avoid regulation, the court granted the RHRA's request to shut down the premises, ordering it to be vacated within six months, and awarded costs to the applicant.

The defendants brought a motion to strike the plaintiffs' statement of claim for disclosing no cause of action, relying on absolute privilege for litigation conduct and the absence of a duty of care owed by opposing counsel.

The plaintiffs, self-represented, cross-moved to stay the defendants' motion and for default judgment, arguing the defendants were improperly noted in default.

The court dismissed the plaintiffs' cross-motion, finding that a motion to strike precedes the need for a statement of defence.

The court granted the defendants' motion, striking the statement of claim without leave to amend, as the claims against the lawyer and law firm were barred by absolute privilege, and the claim against the lawyer's spouse lacked any legal basis.

The court also ordered that the plaintiffs be precluded from bringing any further proceedings against the defendants without leave of the court, citing the abuse of process and the need to protect judicial resources.

The defendants brought a motion to strike the plaintiff's Fresh as Amended Statement of Claim for disclosing no reasonable cause of action.

The court found that the plaintiff had not remedied the deficiencies identified in a previous ruling by Diamond J., nor had the law changed to overcome these deficiencies.

The claims for intentional interference with economic relations failed because the third party (Contac) had released its claims against the defendants.

The conspiracy claim failed as it alleged a conspiracy between a corporate officer acting within his corporate capacity and the corporation itself, which is a legal impossibility.

The court also affirmed that a sole shareholder cannot sue for harm done to the corporation when the corporation itself has released its claims.

The motion to strike was granted without leave to amend, and partial indemnity costs were awarded to the defendants.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The applicants sought specific performance of an agreement of purchase and sale for a residential property, punitive damages, or in the alternative, relief from forfeiture and return of their $50,000 deposit.

The respondents terminated the agreement after the applicants' financing fell through and they requested an extension of the closing date.

The court found that the termination was due to the applicants' inability to close, not merely their request for an extension.

The court dismissed the application, finding no improper termination, no bad faith by the respondents, and no unconscionability in the respondents retaining the deposit, despite reselling the property for a higher price.

The appellant, JS, appealed two decisions of the Consent and Capacity Board: one declining jurisdiction over his appeal regarding capacity to manage property, and another upholding a finding of incapacity to consent to antipsychotic medication.

The Superior Court of Justice allowed the appeal on property management capacity, finding the Board erred in declining jurisdiction due to an administrative glitch that denied JS his statutory right to prompt rights advice.

This issue was remitted back to the Board for a hearing on the merits.

The court dismissed the appeal on capacity to consent to treatment, finding the Board applied the correct test and had ample evidence to support its findings, without conflating mental illness with lack of capacity or failing to consider up-to-date evidence.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claim alleging professional negligence in the handling and settling of a prior lawsuit.

The court denied the plaintiffs' last-minute adjournment request, finding their reasons insufficient and their non-compliance with the timetable unacceptable.

The court granted summary judgment, dismissing the claim on the grounds that it was without foundation, time-barred, and constituted an abuse of process, as many issues had been previously litigated and decided by other judges.

The plaintiff, EllisDon Residential Inc., sought an injunction against Limen Group Const. (2019) Ltd. to resume work and against Defendant Unions for inducing breach of contract and interfering with economic relations.

The defendants argued the Ontario Labour Relations Board (OLRB) had exclusive jurisdiction over the dispute.

The court applied the Weber test, finding the essential character of the dispute related to labour relations and the interpretation of collective agreements, falling within the OLRB's exclusive jurisdiction.

The court dismissed the injunction motion and stayed the action, deferring to the OLRB.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

FSD Pharma Inc. applied to validate the cancellation of Class B shares issued to its former CEO, Raza Bokhari, arguing they were issued for future consideration contrary to s. 23 of the Ontario Business Corporations Act.

Bokhari contended the shares were valid or that the issue should be pursued under s. 130 OBCA, and that FSD was estopped from raising the issue.

The court found that shares issued for future consideration are not a nullity but their status depends on circumstances.

Applying a flexible approach, the court allowed Bokhari to retain shares proportionate to his actual employment days in 2021 (208/365ths) and permitted FSD to cancel the remainder.

The court also rejected the cause of action estoppel argument, noting the prior hearing was limited in scope.

Costs were not awarded to either party due to divided success and tactical efforts by the respondent.

The applicant, York Condominium Corporation No. 221, brought an application against unit owners Julian and Christine Mazur to compel compliance with a Toronto Fire Department inspection order regarding combustible materials, restrain dumping garbage in common elements, and for full indemnity legal costs.

The unit was deemed a fire hazard.

The respondents sought an adjournment, which was denied, and consented to the substantive compliance orders but resisted the costs claim.

The court found the unit's condition a serious hazard, noting the Corporation's obligation to ensure compliance.

The court granted the compliance orders and awarded the Condominium Corporation full indemnity costs.